Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

01 June 2009

No Caffeine

Appellants' briefs will be filed today in Post-Tasini (aka Muchnick). Amicus briefs supporting reversal are due in a week; the opposing brief is due on 07 August. Why should y'all care? This case will try to answer this question definitively:

[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

Historically  largely in reliance upon judicial (not legislative) interpretations of the 1870 and 1909 Copyright Acts  courts have tended to say that this is a jurisdictional requirement. IMNSHO, it's nowhere near "jurisdictional"... particularly since the 1976 Act knows how to say "jurisdiction" (such as in 28 U.S.C. § 1338(a), which was created in the same bill), and the language used looks like "administrative exhaustion" language from many other statutes, such as those dealing with employment discrimination claims. As I've remarked repeatedly before, it matters how one loses.

Further, there's a troubling practical aspect to treating § 411 as a jurisdictional bar: It would place jurisdiction in the hands of a third party against whom the author has no practical remedy. A substantial majority of commercial publishing contracts for book-length works explicitly place the duty to register a work on the publisher. If the publisher fails in that duty, and § 411 is jurisdictional, the author has no copyright remedy against an infringer. If the publisher fails in that duty, and § 411 is a matter of administrative exhaustion, the author need only demonstrate that he or she has taken all the steps she is obligated to take under the contract to enable registration. (Of course, the actual doctrine of administrative exhaustion gets a lot more complicated than that, but that's my point.)

Then there's the whole "substantial justice" issue, since § 411 doesn't apply to "non-US" works, thanks to treaty obligations. And it gets even more complex then... but the better answer remains "administrative exhaustion," not "jurisdictional." Of course, the best answer is to eliminate the registration requirement in the first place, which is unique to US law.

Since so much of the debt load of these (and many other) manufacturers consists of contributions to union health-care funds, wouldn't we perhaps be better off going to a single-payer system where medical care is a matter of right, not commercial bargaining? Every commercial bargain has transaction costs... and anyone who even glances at our medical system can infer rather rapidly that those transaction costs are eating the system alive.

Do you think that maybe  just maybe  the (primarily) Japanese manufacturers of high-quality, smaller vehicles of the 1980s and 1990s knew something that Detroit didn't? And, if so, what does that tell us about the ability of publicly owned oligopolists that are "too big to fail" to effectively evaluate risks, let alone take them? And, more particularly, what does that tell us about the probable fate of the entertainment and publishing industry?

Can anybody involved in this fiasco spell "comparative advantage," despite proclaiming the ascendancy of "capitalism" as a result of the fall of the major communist powers?

Fortunately, the Supreme Court did something right this morning: It has agreed to determine if "business methods" are appropriate for patents. OK, the "question presented" isn't either that clear or that broad, but the Court will necessarily have to consider it... and it however it resolves the particular case in front of it, it will clarify a great deal of the borderland among copyright, patent, and trade secret law. Or, at least, clarify it enough for lawyers to fight over it!

My friend the IPKat notes an interesting perspective on the Pirate Bay criminal litigation: Should a Swedish court look to a quarter-century-old US opinion on a seemingly disjoint question of copyright law to inform its decision? Ah, the shoe is on the other foot now, isn't it, Justice Scalia (and others who think that US courts should never look to foreign law to inform their reasoning)? That said, I'm afraid that the argument doesn't persuade very much once one looks at the lower court proceedings in Sony; the "facts" of the matter were not well/clearly stated by the Supreme Court, and they are quite distinct from the admitted infringing intent in Pirate Bay. But one doesn't even reach that question without considering the foreign law, does one?

Will micropayment systems chop off the long-tail "model" for internet "success"? It's an interesting, and difficult question. Substantively, I suspect that a workable micropayment system will at least in practice make the long-tail argument nonviable... so long as price levels are set so that reading a whole issue of the WSJ under the micropayment system does not cost appreciably more than does the fully diluted subscription cost to the whole issue. (Given the identity of the publisher, though, don't f*cking count on that!) I'll just say one more word, though, and it should scare the hell out of those who blithely propose micropayment systems as a panacaea: Ticketmaster.

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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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